Cochin International Airport Ltd A 'Public Authority' Under RTI Act : Kerala High Court

The Kerala High Court has recently held that the Cochin International Airport (CIAL) is a public authority coming within the purview of the Right to Information Act, 2005.Dismissing the writ appeals preferred by CIAL challenging the decision of the Single Bench, the Division Bench comprising Justice Sushrut Arvind Dharmadhikari and Justice Syam Kumar V.M. observed as below:“…all the limbs of being a 'public authority' are duly satisfied and we must hold that CIAL is a 'public authority' amenable to disseminate information under the provisions and rigours of RTI Act… it is therefore held that CIAL is a 'public authority' under Sec. 2(h)(d)(i) of the RTI Act. The view taken by SIC in the impugned order dated 20.06.2019 is affirmed, holding that CIAL is bound to divulge necessary information and meet the statutory obligations placed upon its shoulders vide the various provisions of the RTI Act, including the appointment of PIO and divulging of necessary information in the said regard. We fix a timeline of 15 days for CIAL to take all necessary steps for being completely RTI compliant under various provisions of the RTI Act, especially so specified under Chapter II (Right to Information and Obligations of Public Authorities) of the RTI Act and file a compliance report before this Court.”The Court also imposed a cost of Rupees one lakh on CIAL for filing the writ appeals without proper authority. It found that the appeals were filed by the Managing Director without the permission of the Board of Directors. FindingThe Division Bench considered three main issues:“ I. Whether CIAL owes its existence to a notification issued or order made by the 'appropriate government', thus satisfying the first leg for the applicability of Sec. 2(h)(d)(i);II. Whether CIAL can be treated as a body/entity 'owned' or/ and 'controlled' by the appropriate government, in a manner to treat it as an authority answerable to the public at large and third parties under the RTI Act;III. Whether CIAL can be treated as an organisation/ entity 'substantially financed' by the appropriate government, possessing a direct/ indirect financial and administrative control of agencies of the State government.”CIAL established by order made by governmentThe Court looked into the process by which the predecessor of CIAL, KIAS (Kochi International Airport Society) came into existence and found that KIAS was constituted through a government order by the erstwhile District Collector of Ernakulam.It observed:“Had KIAS not been there, clearly the question of constitution of CIAL would have never arisen and therefore it can safely be recorded that KIAS and resultantly CIAL both came into existence by virtue of a specific order, bearing G.O. (Ms) No. 42/93/PW&T dated 19.05.1993 issued by the Collector in this regard. It is this G.O. (Ms) No. 42/93/PW&T dated 19.05.1993 that had set the stage formally for establishment and commissioning of the airport at Cochin. Clearly, therefore the first limb of Sec. 2(h)(d)(i) stands satisfied in the present case of CIAL being established by an order made by the appropriate government.”It also noted that the land acquisition for the airport was done by the government of Kerala in the name of KIAS. The land was thereafter, transferred to CIAL and thus, the Court remarked that the entire asset and land base of CIAL was consolidated at the instance of the government.It further observed:"Therefore, it is beyond any pale of doubt that public funding and resources of the State exchequer were always treated as cardinal and centripetal to the sustenance, maintenance and operation of CIAL."Government of Kerala exercises authoritative dominance over CIALThe Court looked in detail into the Memorandum of Association and Articles of Association of CIAL as well as the constitution of the Board of Directors (BoD) of the company.It noted that 6 of the 11 directors of the BoD are ex-officio government nominees, including the Chief Minister and other ministers, and therefore, the government has control over the affairs and management of CIAL.It observed:“The presence of Chief Minister and other Cabinet Ministers in the BOD practically has the consequential psychological effect of all other private Directors yielding to the opinion, view and expression of authority to the head of the government. It cannot be gainsaid that opinion or proposal of the Chief Minister and other Cabinet Ministers presiding over the meeting of BOD of CIAL can be overridden by other private Directors on board of CIAL in a routine or cavalier manner, neither individually nor collectively… The control therefore of GOK is not nominal, supervisory or merely regulatory in nature over CIAL, but complete and total in its effect and impact, in the day to day functioning and decision making of CIAL. This Court cannot break away from the reality that when senior government functionaries, bureaucrats and officers preside over the meeting, then non-government members are left with...

Cochin International Airport Ltd A 'Public Authority' Under RTI Act : Kerala High Court

K. Salma Jennath

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